Wheeler v. Pataki et al

Filing 52

DECISION AND ORDER adopting 48 Report and Recommendations ; granting in part and denying in part 26 Motion to Dismiss. The motion is granted in that Pltf's eighth amendment claim is dismissed, and denied as to Pltf's due process and retaliation claims. Signed by Senior Judge Thomas J. McAvoy on 3/11/09. (sfp, )

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ PETER WHEELER, Plaintiff, v. GEORGE PATAKI, et al., Defendants. _________________________________________ THOMAS J. McAVOY, Senior United States District Judge 9:07-CV-0892 (TJM/GHL)

DECISION & ORDER This pro se action brought pursuant to 42 U.S.C. § 1983 was referred by this Court to the Hon. George H. Lowe, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule N.D.N.Y. 72.3(c). The Report-Recommendation dated February 5, 2009 recommended that Defendants' motion for judgment on the pleadings (dkt. # 26) be granted in part and denied in part such that Plaintiff's Eighth Amendment claim be dismissed and that Defendants be directed to respond to Plaintiff's due process and retaliation claims. No objections to the Report and Recommendation have been filed and the time to do so has expired. On February 25, 2009, Defendants filed an Answer to Plaintiff's Second Amended Complaint. See Ans. [dkt. # 51]. After examining the record, this Court has determined that the Report-

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Recommendation is not subject to attack for plain error or manifest injustice. Accordingly, the Court adopts the Report-Recommendation for the reasons stated therein. It is therefore, ORDERED that Defendants' motion for judgment on the pleadings (dkt. # 26) is GRANTED IN PART and DENIED IN PART. The motion is granted in that Plaintiff's Eighth Amendment claim is DISMISSED, and denied as to Plaintiff's due process and retaliation claims.

DATED:March 11, 2009

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